mesothelioma attorney insurance lawyer: Januari 2015

The 2014 decision of Moore v. Getahun created quite a stir in Ontario's litigation bar when Justice Wilson held that it was improper for counsel to review and discuss draft reports with experts. The Court of Appeal released its appeal of the decision January 29, 2015. You can access the decision by clicking here.

The Court disagreed with the trial judge. There held there is nothing improper about "this longstanding practice." Sharpe J.A. noted that the trial judge's decision is contrary to existing cases which say communication with the expert can actually help ensure an opinion is admissible, coherent and comprehensive. There are safeguards built into the system: counsel cannot persuade an expert to change an opinion and it still needs to be objective.

Draft reports and notes of meetings and other communications are litigation privileged and do not have to be produced, absent a reasonable suspicion the expert was improperly influenced. The foundational information used in formulating the opinion must still be produced.

This common sense decision will be welcomed by many on both the plaintiff and the defence side.

A number of changes to the Rules of Civil Procedure came into effect on January 1, 2015.

One of the changes is with respect to obtaining leave to appeal an interlocutory Order of a judge. The former rule 62.02 provided that a notice of motion for leave to appeal must be served within seven dates of the Order. The new rule is a substantial change: r. 62.02(2) provides that the motion for leave to appeal shall be heard in writing.

The change may reduce costs in that it eliminates the need for an argued motion. The test for such appeals remains the same: a conflicting decision and desirable that leave be granted, or good reason to doubt the correctness of the decision and an appeal involving matters of such importance that leave to appeal should be granted.